President Joe Biden.
The Biden administration has done a great deal of good to reverse many of Trump’s immigration policies. Examples include ending Trump’s anti-Muslim travel bans, ending or expiring previous administration’s bans on most immigrant and work visas (passed on the pretext of fighting the Covid pandemic), lifting the Border Emergency Declaration, and that with it associated diversion of federal funds for the construction of the wall and the complete reinstatement of DACA. The government has also set an ambitious legislative agenda to legalize most undocumented immigrants living in the United States and to facilitate entry for many new immigrants. While this agenda is unlikely to be adopted anytime soon, it still has a valuable function in moving the “Overton window” for political debate.
The above list – which is not exhaustive – should give a break for those (including some libertarians) who claim Biden’s immigration policies are no better than Trump’s. But it is also true that there are several immigration problems that Biden has so far been miserably neglected.
Perhaps most egregious is the government’s decision to break the president’s promise to raise the annual limit on refugees to 125,000 (62,500 for the remainder of the current fiscal year). [but see update below]. Instead, Biden Trump’s historically low ceiling of 15,000 will be maintained, although restrictions on admitting refugees from many African and Muslim majority countries will be lifted. That decision could even result in Biden breaking Trump’s record for the lowest refugee admissions ever. Liberal Washington Post columnist Catherine Rampell sums it up:
Biden spoke warmly of immigrants in general and refugees in particular. Shortly after taking office, he announced plans to rebuild the refugee resettlement program, which had been hampered by years of successively lowering ceilings for refugees set by Trump. Biden said that process would begin by quadrupling the record cap Trump set for fiscal 2021 (from 15,000 to 62,500).
Biden announced all of this in early February. Days later, his State Department submitted a detailed report to Congress on the new caps and eligibility criteria. State Department officials began booking flights for refugees who had waited for years – people who had been fully screened for national security and public health concerns and were believed to be ready to go.
Then, amazingly, Biden blocked his own politics.
Without explanation, Biden never signed the paperwork dubbed the “President’s Resolve,” which is legally necessary to lift Trump’s restrictions. Around 715 desperate refugees whose travel arrangements were made by Biden’s own foreign ministry – many of whom had given away their possessions and vacated their homes in anticipation of a move – had their tickets abruptly canceled.
There is no justification for this reversal and the administration has given no political reasons for it. For some of the excluded refugees, the issue is literally a matter of life and death. At the very least, they will be doomed to spend many more months in severe deprivation.
The media reported from anonymous White House sources suggesting that this was due to fear of “political optics” related to the situation on the southern border. In reality, refugee policy has no relation to the border situation, as the refugees do not cross this border and would not be migrants without papers that have already been checked and approved for entry. The government’s fear of political setback – if that is indeed the cause of the reversal – is also grossly exaggerated. In reality, few Americans know what the refugee limit is (surveys consistently show that most have no idea how much immigration there is in general and other fairly basic aspects of immigration policy) and the few who know the administration and each other The decision to raise them is likely to be made by hardcover immigration restrictors, whose support Biden will most likely not get if they don’t fully accept a Trumpian agenda.
The border problems that may have terrified the government on the refugee cap are largely a consequence of another flawed Biden policy: the decision to maintain Trump’s Title 42 policy of excluding almost all migrants on the southern border while one Make an exception for unaccompanied minors. Predictably, this has resulted in both an increase in transitions by single minors and continued undocumented migration elsewhere, as adult migrants and intact family groups have little opportunity to cross legally.
Biden has upheld the Title 42 arrangement despite the fact that it is dubiously legal and does not benefit public health. It was enacted by Trump’s White House against opposition from CDC scientists who felt it was unnecessary. As David Bier, an expert on immigration policy at the Cato Institute, explains, Biden could easily solve these problems by lifting the expulsion order under Title 42 and reopening the ports of entry.
A third area where the administration has fallen short is the failure to fully complete lawsuits aimed at the confiscation of property for the construction of boundary walls through the use of a significant domain, despite the President’s promise to do just that to end. Just two days ago, a federal court upheld such a conviction and allowed her to move on.
This revenue was originally started under the Trump administration. To the best of my knowledge, the new administration has not initiated any new border wall domain cases. In addition, the termination of Trump’s declaration of emergency and the associated diversion of funding has resulted in the end of wall construction in areas where the diverted funds have been used. Overall, Biden’s record here is still a significant improvement over Trump’s.
Nonetheless, the administration can easily improve further by shutting off all border wall revenue, including those unrelated to Trump’s emergency statement. The federal government can terminate ongoing, significant domain cases at any time. No law prevents it. The administration could also potentially return at least part of the previously seized land to its rightful owners.
The Justice Department claims the District Court’s recent decision on the border wall took it by surprise, as its lawyers asked to continue all ongoing border wall revenue cases. Even if so, they could and should have avoided this problem by simply ending these cases entirely and not just looking for continuities.
Finally, David Bier highlights another immigration policy failure in Biden that has received far less public attention than the three discussed above. But it’s still important:
President Biden ended President Trump’s immigrant visa ban and let his nonimmigrant visa ban expire on April 1. While this is progress, the president is inexplicably keeping 76 percent of consulates closed, in whole or in part, for routine visa processing, which affects roughly 71 percent of all visa applicants. The consulate closure represents a de facto ban on legal immigration and travel, despite the fact that all travelers to the country must receive negative COVID-19 tests and more than 551 million doses of the vaccine have been given outside of the United States.
As of April 8, 2021, only 57 of 237 visa processing centers (24 percent) worldwide for nonimmigrant visa applicants were fully operational, and only 97 (41 percent) allowed anything but emergency applications (Table 1). Even many open locations have massive visa waiting times. The average waiting time for a visitor or business travel visa was 95 days, but 31 percent of the websites opened for these visas had a waiting time of more than 4 months and 22 percent had a waiting time of more than 6 months.
As Bier explains, there is no good reason to continue these visa restrictions at a time when State Department officials are being vaccinated, and the administration has several perfectly legal ways to restart visa processing without the need for face-to-face interviews (Bier describes them detailed). .
Overall, Biden’s immigration policy is already a massive improvement over Trump’s. Further improvements should result in the future. For example, the administration could potentially raise the refugee cap and expand visa processing if the pandemic continues to decline.
But being better than Trump on immigration – far better, in fact – is a very low standard of comparison. On several fronts, the new administration unnecessarily continues the cruel Trump-era policies, inflicting unnecessary suffering on migrants, refugees and even American real estate owners along the southern border. Any of the directives discussed above could easily be changed without passing new laws (most were passed primarily through unilateral executive action) and without much, if any, political risk.
Immigration advocates should recognize the good the Biden government has done. But they should also press as hard as possible to see more of the evil removed.
UPDATE: After rising criticism from immigration and refugee lawyers, the White House is now saying they won’t make a final decision on the refugee ceiling until May 15. However, it is far from clear that they will actually stick to the original promise to set the cap of 62,500 for the remainder of the fiscal year and 125,000 per year after:
President Biden almost gave up his promise on Friday to bring tens of thousands of refugees to the United States fleeing danger abroad.
In a policy passed early Friday, the government announced that it would keep the refugee limit at 15,000, the all-time high set by President Donald Trump. But after hours of fierce criticism from the allies, White House press secretary Jen Psaki reversed the announcement and made an unusual statement that the order had been “the subject of some confusion”.
Psaki said that Biden would actually set the final cap – which will set the refugee allotment by the end of September – by May 15 and that while the White House expects it to be higher than Trump’s cap, it is “unlikely” to be it reaches the upper limit of 62,500, which Biden had put forward with some fanfare in February.
It is good that immigration advocates have forced the government to backtrack on the obvious decision to keep the ridiculously low Trump ceiling. But they should keep the pressure on to make sure Biden at least keeps his original promises.